Abstract

http://ssrn.com/abstract=1722422
 
 

Footnotes (278)



 


 



Forty Years of Wondering in the Wilderness and No Closer to the Promised Land: Bilski’s Superficial Textualism and the Missed Opportunity to Return Patent Law to its Technology Mooring


Peter S. Menell


University of California, Berkeley - School of Law

June 9, 2011

Stanford Law Review, Forthcoming
UC Berkeley Public Law Research Paper No. 1722422

Abstract:     
This article critically analyzes Bilski v. Kappos, the Supreme Court’s first decision on patentable subject matter since the early 1980s. It shows how the majority’s effort to shoehorn patentable subject matter into a superficial textualist mold obfuscates patentable subject matter boundaries and undermines the patent system on multiple levels. The article contends that the patentable subject matter pathology cannot be cured without confronting the roots of the disease: the lack of a forthright principled framework for delineating the boundaries of patentable subject matter. The solution lies in recognizing that patentable subject matter cannot evolve to meet the new challenges of the information age without integrating 18th, 19th, and 20th century sources of patentable subject law into a flexible and evolving body of common law that is sensitive to history, statutory evolution, constitutional constraints, and understanding of modern science and technology. This will be particularly important as courts confront the patentability of DNA compounds, diagnostic tests, and unforeseeable information age innovations.

Number of Pages in PDF File: 26

working papers series


Download This Paper

Date posted: December 9, 2010 ; Last revised: June 23, 2011

Suggested Citation

Menell, Peter S., Forty Years of Wondering in the Wilderness and No Closer to the Promised Land: Bilski’s Superficial Textualism and the Missed Opportunity to Return Patent Law to its Technology Mooring (June 9, 2011). Stanford Law Review, Forthcoming; UC Berkeley Public Law Research Paper No. 1722422. Available at SSRN: http://ssrn.com/abstract=1722422 or http://dx.doi.org/10.2139/ssrn.1722422

Contact Information

Peter S. Menell (Contact Author)
University of California, Berkeley - School of Law ( email )
215 Boalt Hall
Berkeley, CA 94720-7200
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,681
Downloads: 281
Download Rank: 60,543
Footnotes:  278

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.437 seconds